Siddique Akbar vs State Of Kerala
2022 Latest Caselaw 7013 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
        FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                         WP(C) NO. 25860 OF 2021
PETITIONER:

            T.P.TILES CENTRE,
            NEAR MUNICIPAL OFFICE, KALPETTA POST, WAYANAD 673 121
            REPRESENTED BY THE MANAGING PARTNER, C. ABUBACKER,
            S/O. MAMMAD, AGED 59 YEARS, CHENAKKAL HOUSE,
            KALLUVAYAL, SULTHAN BATHERY, WAYANAD 673 592

            BY ADVS.
            V.SHYAM
            P.ARUN
            SAHEERA K.


RESPONDENTS:

    1       THE DISTRICT LABOUR OFFICER,
            CIVIL STATION, WAYANAD 673 122.

    2       THE ASSISTANT LABOUR OFFICER,
            KALPETTA, WAYANAD 673 121.

    3       KERALA HEAD LOAD WORKERS WELFARE FUND BOARD,
            REPRESENTED BY EXECUTIVE OFFICER, WAYANAD DISTRICT
            COMMITTEE, PALAKUNNUMMAL BUILDING, ANAPALAM JUNCTION,
            MUNDERI ROAD, KALPETTA, WAYANAD 673 121

 *ADDL.4    SIDDIQUE AKBAR
            S/O AKBAR, AGED 28 YEARS, CONVENER CITU,
            (KALPETTA, WAYANAD), RESIDING AT PUTHAN PURAKKAL HOUSE,
            KALPETTA P.O., WAYANAD.

 *ADDL.5    M.J.PATMARAJAN
            S/O.A.V.JAGANATHAN, AGED 47 YEARS, CONVENER, AITUC
            (KALPETTA, WAYANAD) RESIDING AT AMBALYVADAKEKUDY HOUSE,
            EDAZHUNI, PAZHAMUDI P.O., WAYANAD.

 *ADDL.6    SAITHALVI ODUVIL,
            S/O MUHAMMED, AGED 54 YEARS, STU (KALPETTA, WAYANAD)
            GUSALAYIKUNNU, KALPETTA P.O., WAYANAD.

 *ADDL.7    ASHRAF.M.K.
            S/O.UNNYALI, AGED 44 YEARS, INTUC (KALPETTA, WAYANAD),
 WP(C) Nos.25860/2021, 8909/2022
                               -2-



            MANJAMBRA HOUSE, KALPETTA P.O., WAYANAD.
            (*ADDITIONAL R4 TO R7 IMPLEADED AS PER ORDER
            DATED 07.01.2022 IN I.A.NO.1 OF 2021 IN W.P.(C)
            NO.25860/2021)

            BY ADVS.
            SRI.JUSTIN JACOB, SR.GP.
            SRI.THOMAS ABRAHAM
            SRI.ANIL K.NAIR
            SRI.GEORGE J.NALAPPAT


     THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 25.05.2022, ALONG WITH WP(C).8909/2022, THE
COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
 WP(C) Nos.25860/2021, 8909/2022
                            -3-



        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
          THE HONOURABLE MR. JUSTICE AMIT RAWAL
 FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                 WP(C) NO. 8909 OF 2022
PETITIONERS:

    1    SIDDIQUE AKBAR,
         AGED 28 YEARS,
         S/O. AKBAR, RESIDING AT PUTHAN PURAKKAL HOUSE,
         KALPETTA P. O., WAYANAD - 673121.

    2    M. J. PATMARAJAN,
         AGED 47 YEARS,
         S/O. A. V. JAGANATHAN,
         RESIDING AT AMBALYVADAKEKUDY HOUSE,
         EDAZHUNI, PUZHAMUDI P. O., WAYANAD - 673121.

    3    SAITHALVI ODUVIL,
         AGED 54 YEARS,
         S/O. MUHAMMED, GUSALAYIKUNNU,
         KALPETTA P. O., WAYANAD - 673121.

    4    ASHRAF M. K.,
         AGED 44 YEARS,
         S/O. UNNYALI, MANJAMBRA HOUSE,
         KALPETTA P. O., WAYANAD - 673121.

         BY ADVS.
         SRI.ANIL K.NAIR
         SRI.ASWIN.P.JOHN
         SRI.PAUL BABY


RESPONDENTS:

    1    STATE OF KERALA,
         REPRESENTED BY ITS SECRETARY,
         DEPARTMENT OF LABOUR AND SKILLS,
         GOVERNMENT OF KERALA, SECRETARIAT,
 WP(C) Nos.25860/2021, 8909/2022
                                  -4-



               THIRUVANANTHAPURAM - 695 001.

    2          LABOUR COMMISSIONER, KERALA,
               THOZIL BHAVAN, VIKAS BHAVAN, PMG,
               THIRUVANANTHAPURAM - 695 033.

    3          THE DISTRICT LABOUR OFFICER,
               CIVIL STATION, WAYANAD - 673122.

    4          THE ASSISTANT LABOUR OFFICER,
               KALPETTA, WAYANAD - 673121 (INSPECTOR UNDER THE
               KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT,
               1960)

               BY ADV
               SRI.JUSTIN JACOB, SR.GP.
               THOMAS ABRAHAM


        THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 25.05.2022, ALONG WITH WP(C).25860/2021, THE
COURT ON 17.06.2022 DELIVERED THE FOLLOWING:
 WP(C) Nos.25860/2021, 8909/2022
                            -5-



                         JUDGMENT

[WP(C) Nos.25860/2021, 8909/2022]

This order of mine shall dispose of two writ

petitions; W.P(C).25860 of 2021 preferred by the

establishment against the orders dated 05.07.2021 of the

Assistant Labour Officer and dated 03.11.2021 of the

District Labour Officer rejecting the application for

registering the employees as headload workers under the

Kerala Headload Workers Act and the Rules framed

thereunder (hereinafter referred to as 'first writ petition')

and W.P(C).No.8909 of 2021 titled as Sri.Siddique Akbar

and others Vs.State of Kerala wherein writ in the nature

of mandamus has been sought for issuing directions to

the 4th respondent Assistant Labour Officer to take a call

on the representation dated 01.03.2022 submitted by the

petitioners to verify and register the records maintained

under Kerala Shops and Commercial Establishment Act

for the purpose of ascertaining whether the person on

whose behalf the applications for registration under Rule WP(C) Nos.25860/2021, 8909/2022

26A of the Rules were included in the register of the

workers or not (hereinafter referred to as 'second writ

petition').

2. First writ petitioner is claiming to be a

partnership firm dealing in tiles, sanitary wares,

hardwares, bathroom fittings, plumbing etc., in Kalpatta,

Wynad district. It has a showroom situated near Water

Authority, Kalpatta, three godowns and one branch

within the radiance of 1.5 kilometers. For carrying out

the aforementioned had already been issued a trade

licence by the Municipality on 09.06.2021 Ext.P2 and

registration under the Kerala Shops and Commercial

Establishment Act had also been obtained as evident

from Ext.P3 requiring the service of skilled and trained

head load workers for the purpose of carrying out

loading and unloading work in the main showroom and

also in the branch/three godowns. Skilled labours were

appointed for the said purpose as it had been dealing

with costly marbles, vitrified and ceramic tiles. An WP(C) Nos.25860/2021, 8909/2022

application for registration of fifteen (15) headload

workers, exclusively for such purpose, under Rule 26A of

the Kerala Headload Workers Rules (hereinafter referred

to as 'the Rules' for short) was submitted. The area

under which the showroom was situated falls under the

scheme promulgated under Section 13 of the Act as

evident from the application Exts.P5 and P19.

3. Learned counsel appearing on behalf of the

petitioner submitted that the Labour Officer dismissed

the application vide impugned order dated 05.07.2021 in

a most mechanical and sketchy manner and appeal taken

before the Appellate Authority i.e., District Labour

Officer had also resulted into dismissal on the ground

that in case the persons who sought to be registered for

the purpose of unloading and loading having a particular

skill would take away the right of livelihood of other head

load workers already registered under the Act in view of

the existence of the scheme. The said orders are liable

to be set aside as the said decision is against the dictum WP(C) Nos.25860/2021, 8909/2022

of various judgments and also Article 19(1)(g) of the

Constitution of India. The prime reason assigned by the

District Labour Officer was that in case of allowing the

application, the Welfare Fund Board would not be able to

collect contributions and would adversely be affected.

Once the objections were filed by the Welfare Board, the

authority was enjoined upon obligation to register the

head load workers by issuing the Registration Certificate,

even if the workers had been discharging the duties

higher than what they were entitled into. It is owing to

the pandemic certain kind of duties which were in

existence have been truncated by the establishment in

order to sustain, such applications were filed since they

had the skill and knowledge of handling the particular

material which petitioners' firm was dealing with. The

impugned orders are against the decision of the Division

Bench of this Court in 2016 (5) KHC 238 Ganngadharan

C.P. and another Vs. Abdul Naseer and others.

Impleadment of the local head load workers an WP(C) Nos.25860/2021, 8909/2022

opposition would reveal that it is a clear cut case of

violation of Article 19 (1)(g) of the Constitution of India.

4. Mr.Thomas Ibrahim, learned counsel

representing the Welfare Board supported the impugned

orders on the ground that the registered pool workers

would sustain considerable loss.

5. The loading and unloading works of the

establishment is being done by registered pool workers.

There are about thirty nine(39) pool workers in the

Gudalai area which is a scheme covered area and

issuance of registration to the employees of the

petitioner would affect the livelihood of registered pool

workers and de-stabilize the system envisaged in the

statutory scheme. The establishment was required to be

registered under the Kerala Shops and Commercial

Establishments Act, 1960 for the purpose of filing the

objection and inspection was carried out by the officers

of the Board but the petitioner refused to provide records WP(C) Nos.25860/2021, 8909/2022

evidencing the list of employees. The officers intended

to meet fifteen (15) employees who have submitted

application for issuance of the card under Rule 26A,

seven (7) were present but it was found that they were

not doing head load works. In fact three of them were

sales executives and four were salesmen. The non-

availability of the other applicants had also not been

satisfactorily replied with. As per the additional affidavit

placed on record, it was found that the management had

paid only a paltry amount of cess under the Head load

workers Act meaning by they are indulging into

exploitation of the workers.

6. Learned counsel representing the already

registered headload workers countered the arguments

for placing the reliance on Ext.R4(f) whereby seven (7)

applicants were discharging duties of salesmen. They

could not be permitted to be registered as headload

workers, a job lower than what they would be

discharging and they were required to be registered WP(C) Nos.25860/2021, 8909/2022

under the Shops and Commercial Establishment Act. It

is in that background representation was submitted but

in the absence of any decision thereon compelled to

approach this Court vide the second writ petition.

7. I have heard learned counsel for the parties

and appraised the paper books.

8. Section 13 of the Kerala Head load Workers

Act, 1978 empowers the promulgation of the scheme

which has been defined as Kerala Head load Workers

(Regulation of Employment and Welfare) Scheme, 1983

dealing with the registration, obligation and welfare of

the head load workers, the employers, conditions of

service of registered head load workers, constitution of

the committee and finance of the committee. In the

absence of the registration as headload workers no

headload worker under the provisions of the rule shall be

required or allowed to work in any area where the

scheme is applicable. Rule 26A of the Rules empowers WP(C) Nos.25860/2021, 8909/2022

the registering authority to receive an application for

registration under Form IX with additional copies of

employers and contractors and on receipt of the

application, the authority is required to issue notice in

Form X to the employees of the contractors from whom

the headload worker claims work and the area where the

scheme is in operation, the Chairman, Kerala Head load

Workers Welfare Board, Local Committee and after

considering the objection and opportunity of hearing,

registering authorities shall register the name of head

load workers in the Register of headload workers and

shall issue identity cards in Form XI. Cancellation of the

registration is also permissible under Sub-rule 4 of Rule

26A.

9. The Board and the registered workers

vigorously argued in support the impugned decision as it

is a ploy by the management in scouting the employees

already discharging duties of sales executive and

salesmen by registering them as headload workers which WP(C) Nos.25860/2021, 8909/2022

would not only demeaning but glorying the discharge of

the duties and take away the valuable right of already

existed workers. The chances to earn the livelihood

considerably reduced is not acceptable for the reason

that it is against the framework of provisions of Article

19 of the Constitution of India.

10. Rule 26A empowers the registering authorities

to register the headload worker after examination of the

objection and cancellation of registration. An attempt

was made by the respondents to cite judgment of

Division Bench of this Court in Suresh Kumar R. and

others Vs. State of Kerala in Writ Appeal No.1151 of

2019. The question involved in the cited case was

whether the affected registered workers in a scheme

would have a right to assail the order in an appeal viz.

registration of the Head load workers affecting their

rights. The Division Bench of this Court in

Gangadharan supra has laid down that whenever the

employer seeks the registration of its own workers WP(C) Nos.25860/2021, 8909/2022

though the objection can be raised by the existing

unattached registered workers, but every person has a

fundamental right to live by doing works of his choice

and therefore registration cannot be denied merely for

the reason that other registered unattached workers in

the area would be deprived of work. The authorities

have to be akin to the scheme of the statute without

compromising fundamental principle of equality before

law. Employer can engage sufficient number of

employees of his choice and registering authority is

obliged to give registration to such attached workers and

it is always open for the employer to make appropriate

arrangements by engaging workers of his choice to do

the loading and unloading operations.

11. Even if the workers are registered as salesmen

and discharging duties of sales executives there is no

estoppel and bar for them to do the job of loading and

unloading as the pandemic has made society to live a

simple and hardworking life as number of the jobs WP(C) Nos.25860/2021, 8909/2022

available have been abolished by the management to

mete out the day to day expenses. This cannot be an

estoppel for an employee or an employer for submitting

the application for registration under Rule 26A of the

Rules.

12. Reasoning of the impugned order of the

Assistant Labour Officer and District Labour Officer is

that it would take away the valuable right of the already

unattached workers registered under the Act in the area

falling under the scheme, in my view is wholly against

the dictum of the law referred supra. For the reason

aforementioned the impugned orders dated 05.07.2021

and 03.11.2021 are quashed. W.P(C).25860/21 is

allowed.

As far as the second writ petition is concerned

respondents have sought direction to dispose of the

representations submitted to Assistant Labour Officer on

behalf of T.P.Tiles Centre for conducting the inspection WP(C) Nos.25860/2021, 8909/2022

of the establishment, verify the register/records, which,

in my view, would not sustain as by way of additional

affidavit, the entire material has already been placed on

record and referred to in discharge the duties.

W.P(C).8909/22 is dismissed.

Sd/-

AMIT RAWAL JUDGE vv WP(C) Nos.25860/2021, 8909/2022

APPENDIX OF WP(C) 8909/2022

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE REPRESENTATION DATED 01.03.2022 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT. WP(C) Nos.25860/2021, 8909/2022

APPENDIX OF WP(C) 25860/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF THE PARTNERSHIP DEED OF THE PETITIONER FIRM DATED 1-4-2013

Exhibit P2 COPY OF THE TRADE LICENCE ISSUED BY THE KALPETTA MUNICIPALITY TO THE PETITIONER DATED 9-06-2021

Exhibit P3 COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 3- 2-2016

Exhibit P4 COPY OF THE REGISTRATION CERTIFICATE ISSUED BY GOVERNMENT OF INDIA DATED 21-09-2017

Exhibit P5 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER M.D SITARE DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P6 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER BHASHEER A.K DATED 3-4-2021 BEFORE THE 1ST RESPONDENT.

Exhibit P7 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER NIDHEESH K DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P8 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER MUHAMMED FASSALUDHEEN K.U DATED 3-4-2021 BEFORE THE 1ST RESPONDENT.

Exhibit P9 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER M.D KHURSID DATED 3-4-2021 BEFORE THE 1ST WP(C) Nos.25860/2021, 8909/2022

RESPONDENT.

Exhibit P10 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER ILLYAS M DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P11 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER ABDUL RASHEED A.K DATED 3-4-2021 BEFORE THE 1ST RESPONDENT.

Exhibit P12 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER NIKHIL K.V DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P13 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER MUKESH PRASAD ROY DATED 3-4-2021 BEFORE THE 1ST RESPONDENT.

Exhibit P14 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER ASHRAF DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P15 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER MD AFROZ DATED 3-4-2021 BEFORE THE 1ST RESPONDENT.

Exhibit P16 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER DIL BAHADUR LIMBU DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P17 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER MD RAHIM DATED 3-4-2021 BEFORE THE 1ST RESPONDENT.

Exhibit P18 COPY OF THE APPLICATION SUBMITTED BY THE PETITIOENR'S WORKER SUNIL KUMAR C DATED 3-4-2021 BEFORE THE 1ST RESPONDENT WP(C) Nos.25860/2021, 8909/2022

Exhibit P19 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S WORKER MD SADDAM HUSSAIN DATED 3-4-2021 BEFORE THE 1ST RESPONDENT

Exhibit P20 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 13-08-2015 IN W.P9C0 NO. 23602 OF 2015

Exhibit P21 COPY OF THE ORDER NO. 379 OF 2020 DATED 5-07-2021 OF THE 1ST RESPONDENT REJECTING THE APPLICATIONS OF THE EMPLOYEES OF THE PETITIONER.

Exhibit P22 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C0 NO 14458 OF 2021 DATED 20-07-2021

Exhibit P23 COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.A NO 11097 OF 2021 DATED 3-09-2021

Exhibit P24 COPY OF THE ORDER OF THE 1ST RESPONDENT IN APPEAL NO. B-1536 OF 2021 DATED 3-11-2021

RESPONDENT EXHIBITS

Exhibit R3 a THE TRUE COPY OF THE LETTER FROM CHAIRMAN OF WAYANAD DISTRICT COMMITEE OF THIS RESPONDENT TO THE CHIEF EXECUTIVE OF THIS RESPONDENT DATED 24.3.2022